CORRESPONDENCE.

Mr. Hulsemann to Mr. Marcy.

[Translation.]

AUSTRIAN LEGATION,

Washington, August 29, 1853.

The undersigned, chargé d'affaires of his Majesty the Emperor of Austria, has been instructed to address this official note to the honorable Secretary of State, in relation to the difficulties which have occurred between the agents of the two governments at the port of Smyrna.

The facts which came to pass on that occasion are of public notoriety, and the undersigned thinks he may confine himself in his comments thereon to the most prominent points. Our consul-general, Mr. de Weckbecker, exercising the right of jurisdiction which has been guarantied by treaties to the consular agents of Austria in the East relative to their countrymen, had caused to be arrested, and conveyed on board the Austrian brig-of-war "Huszar," the Hungarian refugee, Martin Koszta; who, residing at one time in the interior at Kutahia, had left Turkey, in company with Kossuth, and who, after having pledged himself in writing not to set foot again on Ottoman territory, broke that pledge by returning some months since to Smyrna. This arrest gave cause to some reclamations which Mr. Offley, United States consul, conjointly with the commander of the American sloop-of-war “St. Louis," anchored in the roads before Smyrna, deemed it incumbent upon themselves to address to Mr. de Weckbecker, basing their demands upon the fact that the aforesaid Koszta, having, according to them, caused himself to be naturalized in the United States, was entitled to the protection of the American authorities. Upon this, the consulgeneral of the Emperor, accompanied by the American consul and the American commander, repaired on board the "Huszar," and these two functionaries had it in their power to convince themselves, from the declarations of the prisoner himself, that the latter had not acquired the quality of citizen of the United States, and that he was not even provided with an American passport.

On his own part, the chargé d'affaires ad interim of the United States at Constantinople addressed a communication, on the 27th of June, to the Imperial Internuncio, (minister,) the object of which was to ask for the release of Koszta, upon the plea that he had taken some steps to be admitted as an American citizen. Baron de Bruck replied to this request on the same day, refusing to comply with it. Two days after, Mr. Brown returned again to the charge, by forwarding to Mr. de Bruck a copy of a declaration purporting to have been signed by Koszta, in New York, on the 31st of July last, and which the chargé d'affaires of the Union seems to regard sufficient to imply the naturalization of that

refugee in America. The Internuncio replied that it was impossible for him to alter his determination, as he could not consider the individual in question as belonging to a foreign jurisdiction so long as the ties which bound him to his country were not legally dissolved.

The undersigned thinks it proper to imbody with the very text of this note a copy of the document above mentioned, which has served as the basis to all the extraordinary proceedings both on the part of Mr. Brown and that of the commander of the St. Louis. Here it is:

Declaration made by Martin Koszta of allegiance to the government of the United States.

I, Martin Koszta, do declare, on oath, that it is bona fide my intention to become a citizen o the United States, and to renounce forever all allegiance and fidelity to all and every foreign pfrince, potentate, State, and sovereignty whatever, and particularly to the Emperor of Austria.

Sworn in open court this 31st day of July, 1852, before me, clerk of the court, &c.

I, ———, clerk of the court of being a court of record, having common law jurisdiction, and a clerk and seal, do certify that the above is a true copy of the original declara tion of Mr. Koszta to become a citizen of the United States, remaining opened in my office. In testimony whereof, I have hereunto subscribed my name and affixed the seal of the said [L. S.] court the 31st day of July, 1852.

Clerk.

It is difficult to conceive how the representative of the United States could have sought to found a proof of the pretended naturalization of Koszta upon a document destitute of all authentic character, seeing that the form of legalization which is affixed to it, and which alone could have invested it with that character, leaves in blank* both the name of the tribunal before which the declaration of Koszta must have been made, and the name of the clerk who is supposed to be the depositary of the original document, and that, moreover, this pretended legalization has neither signature nor official seal attached to it. But even admitting the authenticity of this declaration; and supposing that Koszta could, without violating the laws of his country of his own accord, and without any other formalities, have broken asunder the ties which bind him to his native soil, the text of the document shows that the author of it has done nothing more than to declare his intention of becoming a citizen of the United States, and, with that object in view, of renouncing his rights of nationality in the States of the Emperor.

A few days later, a new and lamentable episode occurred to aggravate the question. On the morning of the 2d of July, the commander of the American sloop-of-war "St. Louis," Mr. Ingraham, sent a message to the commanding officer of the "Huszar," to the effect that, in pursuance of instructions received from the chargé d'affaires of the United States at Constantinople, he had to call upon him to deliver the aforesaid Koszta into his hands; adding that if he did not receive a satisfactory answer by 4 o'clock in the afternoon, he should cause the prisoner to be taken away by main force. As it was reasonable to expect, our commander, instead of complying with this request, prepared himself to repulse force by force; and when, at the hour designated, the American commander, getting ready to carry out his threat, ranged himself alongside our vessel and brought his guns to bear upon the im

* Literal-makes no mention of either translator.

perial

brig, and was about to carry matters to the last extremity, our brave sailors, although much inferior in numbers, were determined to oppose a vigorous resistance to the act of aggression which was on the point of being consummated in the neutral port of Smyrna, and on the part of a vessel-of-war belonging to a power with which Austria was at peace. Our consul-general only succeeded in preventing this bloody catastrophe, which would probably have ended in the destruction of a considerable portion of the town of Smyrna, and of vessels of all nations in the harbor, by consenting that Koszta should temporarily, and until the setttement of the difficulties of which he was the subject, be confided to the custody of the consul-general of France, at Smyrna.

The return of Mr. Marsh to Constantinople a few days after these events brought on a discussion, between himself and our Internuncio, of the question whether Martin Koszta was to be considered as an Austrian subject or as a citizen of the United States. Although still ignorant of this discussion, the imperial government has come to the determination not to delay any longer addressing itself to the government of the United States through my instrumentality. There are two distinct questions involved in this discussion. One is the main question relating to the dispute about the rights of jurisdiction which has risen between the legations of Austria and of the United States at Constantinople, concerning Koszta; the other question, at least fully as important, is that which has reference to those formalities in virtue of which the agents of the United States have deemed themselves authorized in urging their pretensions.

With regard to the first of these two questions, treated in the correspondence which has taken place on the subject between the Internuncio and the chargé d'affaires ad interim of the United States in Turkey, the imperial government adopts entirely the views of Baron de Bruck. In our opinion, Koszta has never ceased to be an Austrian subject. Everything combines to make the imperial government persist in this estimate of the matter. The laws of his country are opposed to Koszta's breaking asunder of his own accord, and without having obtained permission to expatriate himself from the authorities of that country, the ties of nationality which bind him to it. The very declaration of that refugee on board the "Huszar," in the presence of the American consul and of the commander of the "St. Louis," shows that he still considers himself as a subject of the Emperor. In short, even according to terms of the law of the Union, such a declaration, supposed to have been signed by Koszta, and from which Mr. Brown has pretended to infer his naturalization in the United States, is not sufficient to produce that effect. The undersigned thinks he may dis pense entering into any further details in regard to this question, seeing that the Department of State of the United States constantly refuses to grant passports to individuals who find themselves in this category, and that official publications have been made from time to

time to that effect.

As there can be no doubt, therefore, concerning the question of nationality, the consul-general of the Emperor at Smyrna was without doubt perfectly justified, when, in virtue of those treaties, which sub

ject Austrian subjects in Turkey to consular jurisdiction, he seized the person of Koszta within the pale of his jurisdiction.

Such being the case, the imperial government trusts that the gov ernment of the United States will hasten to instruct its consul at Smyrna not to interpose any obstacle to the extradition of the aforesaid Koszta by the consul-general of France to the consul-general of Austria at Smyrna.

But, apart from this question of jurisdiction, it is especially the mode adopted by the functionaries of the United States, in order to settle the matter, which has given the imperial government the most legitimate grounds of complaint.

The act of violence which the commander of the sloop-of-war "St. Louis" committed against the Austrian brig "Huszar"-that real act of war, committed in full peace, in a neutral port, the fatal effects of which were only averted by the prudence and moderation of our consul-general at Smyrna-constitutes an outrage upon the principles of the law of nations; and the imperial government has no doubt but that this act, viewed in such light, will have been condemned by the government of the United States, said government being itself interested in preventing the repetition of similar occurrences.

The events of the second of July at Smyrna present in a two-fold point of view a serious deviation from the rules of international law.

1st. The commander of the United States sloop-of-war "St. Louis" threatened that the brig of his Imperial and Royal Apostolic Majesty, the "Huszar," with a hostile attack, by bringing his guns to bear upon the latter, and by announcing, in writing, that if a certain individual detained on board, whose nationality was being discussed between the agents of the two governments, was not delivered over to him at a stated hour, he would go and take him by main force.

There can be no doubt but that the threat of attacking, by main force, a vessel-of-war belonging to the military marine of a sovereign State whose flag she carries, is nothing else than a threat of an act of war. Now, the right of making war is necessarily, and from the very nature of that right, inherent in the sovereign power.

"A right of so momentous a nature," says Vattel, (Law of Nations, vol. 2, book 3, chap. 1 § 4,) "the right of judging whether the nation has real grounds of complaint; whether she Is authorized to employ force, and justifiable in taking up arms; whether prudence will admit of such a step, and whether the welfare of the State requires it-that right, I say, can belong anly to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights without which there can be no salutary government, and which are therefore called rights of majesty."

The founders of the republic of the United States fully recognised, from the beginning of the Union, the rights reserved to the sovereign power. The articles of perpetual confederacy and union between the States of New Hampshire, Massachusetts, &c., of 1778, contain already the following stipulation, (IX, § 1:)

"The right of declaring war and to make peace shall belong solely and exclusively to the Congress of the United States."

This basis of the public law of the United States was preserved and sanctioned by the constitution of the United States of 1787, which reserves the power of declaring war explicitly to Congress, (section VIII.)

Upon this point the constitution of the United States harmonizes perfectly with the public law of Europe.

But this right, reserved to the supreme power of each country, would become illusory and null, if commanders of naval forces or others were to be explicitly or tacitly authorized to undertake, either of their own accord, or upon the order or with the consent of a diplomatic or consular agent, to commit acts of aggression and of war against the vessels or the troops of another nation, without special instructions from the supreme authority of their own country, notified in the forms prescribed by the law of nations.

It is impossible that the regular governments of the civilized world can wish to expose their authority, as well as general peace, to the hazards of hostilities commenced without their knowledge, and without special authority from the sovereign power, by such or such functionary in a foreign land.

2dly. This act of hostility has been committed in a neutral port of a power friendly to both nations.

Certainly, if there be one point of maritime and international law which is clearly and positively defined, and which has been adopted by all the powers of the world, it is the inviolability of neutral ports, the absolute prohibition from committing, in such ports, acts of war and of violence, even against the enemy with whom we are at open war. Modern history furnishes but few examples of cases of this kind. One of these rare instances is the attack upon the Dutch East India fleet, which had taken shelter in the port of Bergne, in Norway, by the admiral commanding the forces of the enemy; and although that attack was repulsed by the guns of the fort of that neutral port, Vattel-an authority universally recognised in matters relating to the law of nations-does, nevertheless, accuse the neutral power (Denmark) of having complained in too faint a voice of an undertaking so injurious to her dignity and to her rights.

In order the better to establish the concurrence of all nations, and the unanimity of all expounders of civil law on this question, we can quote the authority of an American statesman. The following is the opinion of Mr. Henry Wheaton: "The rights of war," says he, (Elements of International Law, part IV, chap. III, § 7,) "can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. Hence it follows that hostilities cannot lawfully be exercised within the territorial jurisdiction of the neutral State, which is the common friend of both parties." Then, 9: "Not only are all captures made by the belligerent cruisers within the limits of this jurisdiction absolutely illegal and void, but captures made by armed vessels stationed in a bay or river, or in the mouth of a river, or in the harbor of a neutral State, for the purpose of exercising the rights of war from this station, are also invalid. Thus, where a British privateer stationed itself within the river Mississippi, in the neutral territory of the United States, for the purpose of exercising the right of war from the river, by standing off and on, obtaining information at the Balize, and overhauling vessels in their course down the river, and made the capture in question within three English miles of the alluvial islands formed at its mouth, restitution of the captured